On a conference call with reporters Friday, Sen. Chuck Schumer (D-NY) acknowledged that President Obama may not need Congressional authorization to avoid a default on the national debt. But he noted, too, that the Constitutional debate on this question isn’t ripe enough yet for Obama to take an end run around Congress, even if Republicans refuse to increase the national borrowing limit.
I asked Schumer, a lawyer, whether, in his view, the administration had the power to continue issuing new debt even if Congress fails to raise the debt limit. He acknowledged that the question’s been discussed, but said the White House probably shouldn’t go there just yet.
“It’s certainly worth exploring,” Schumer said. “I think it needs a little more exploration and study. It’s probably not right to pursue at this point and you wouldn’t want to go ahead and issue the debt and then have the courts reverse it.”
For weeks, liberal legal academics have been arguing that the fourth section of the 14th Amendment forbids Congress from defaulting. “The validity of the public debt of the United States, authorized by law…shall not be questioned,” it reads. More recently, Democratic members of Congress have been eyeing this interpretation as a sort of escape hatch: Why should we be debating raising the debt limit on the GOP’s draconian terms if the Constitution says Congress can’t force a default.
But Democratic leaders and the White House have thus far pursued standard legislative negotiations, and, according to multiple aides, the question of Constitutionality hasn’t come up in those discussions. President Obama declined to comment on the Constitutional question in his Wednesday press conference.
“It’s worth exploring next time around,” Schumer said. “But it hasn’t been examined enough to deploy it this time.”
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at email@example.com.